Criminal Sexual Conduct Defense
There are several defenses to sex crime charges of criminal sexual conduct, no matter the csc degrees.
Criminal Sexual Conduct Defense
Below are a list of some of those defenses that can be successfully argued when fighting for your life and your freedom.
Consent is a defense to some criminal sexual conduct cases. A willing, noncoerced act of sexual intercourse (sexual penetration) between persons of sufficient age who are neither mentally defective or incapacitated, nor physically helpless will NOT be charged with criminal sexual conduct.
Consent ONLY APPLIES when the individuals involved in the sexal act are 16 years old or older. The exception to that rule is when the accusations involve a person in a “Position of Authority,” such as a teacher or doctor, then the age increases to over 18 years old. The law does NOT recognize consent by a child. (See below)
The defense of consent, for the accused, is a very common, powerful defense. Blank Law, PC has been involved in hundreds of criminal sexual assault cases in which the consent defense has been used successfully. If the defense of consent applies to your sexual assault case, Nicole Blank Becker knows very effective arguments to make it work for you. Once consent is proven, the state’s case against you is over.
AGE OF CONSENT IN MICHIGAN
What is the age of consent in Michigan?
In Michigan, the age of consent is 16, and there are NO exceptions. Individuals who are 15 years old or younger in Michigan are not able to legally consent to sexual activity. An adult who engaged in such activity may face statutory rape criminal charges (see here what is statutory rape?).
Anyone who engages in sexual penetration with someone who is 15 years old or younger, can be charged and that person convicted of criminal sexual conduct 1st degree and/or criminal sexual conduct 3rd degree.
Sexual penetration refers to: sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body.
Anyone who engages in sexual activity that involves unwanted sexual touching with someone who is 15 years old or younger can be charged and convicted of criminal sexual conduct 2nd degree and/or criminal sexual conduct 4th degree. Consent is NOT a defense here.
Sexual activity refers to: sexual touching or sexual contact.
Michigan law is clear that those who have not reached the statutorily designated age of 16 are not able to give consent to sexual activity.
JURY INSTRUCTION – CONSENT
Michigan has a special criminal jury instruction for consent as a defense to criminal sexual conduct charges. These Michigan criminal jury instructions are read at every jury trial involving criminal sexual conduct accusations, regardless of what degree.
CJI 20.27: A person consents to sexual acts by agreeing to it freely and willingly, without being forced or coerced. It is not necessary to show that the accuser resisted the accused sex offender to prove that this sexual assault crime was committed. It is also not necessary to show that the accuser did anything to lessen the danger to himself/herself.
In deciding whether or not the victim consented to the act, you should consider all of the evidence. It may help you to think about the following questions:
- Was the accuser free to leave and not take part in the sexual act?
- Did the defendant threaten the accuser with present or future injury?
- Did the defendant use force, violence, or coercion?
- Did the defendant display a weapon?
If the jury believes the evidence raises a reasonable doubt as to whether the victim consented to the act freely and willingly, then they must find the accused sex offender not guilty.
CONSENT SHOULD NEVER BE ASSUMED
You cannot assume consent. Consent must be a meeting of the minds for all those involved. There must be a clear understanding regarding the intent of each person prior to engaging in sexual activity/penetration.
“NO MEANS NO” is a saying we are all familiar with and understand. If at any time your partner says “NO,” you must immediately STOP what you are doing.
Oftentimes, during a sexual encounter, it is difficult to simply stop in the middle of sexual contact or sexual activity due to the sexual nature, but you must. The consequences for not stopping when your partner says NO are life changing.
You should NEVER assume that your partner wants to engage in sexual contact or sexual activity because you had a prior sexual relationship with them. Just because your partner consented to certain sexual activities before, that doesn’t mean your partner consents to those same sexual activities this time. Communication is going to be a very important tool in avoiding the strict maximum penalty/criminal penalties of criminal sexual conduct charges.
Not to mention, just because a person dresses in a certain way, is flirtatious, or befriends you on social media, you CANNOT assume that person has consented to sexual contact or sexual activity of any kind.
Always remember, CONSENT can be WITHDRAWN by either party at any point.
BLANK LAW, PC EXAMPLES OF CONSENT
Blank Law, PC has represented a number of clients that have found themselves in these exact scenarios.
For example, in the middle of engaging in sexual activity, i.e. “hooking up” in a car, an accuser said “NO.” Our client thought she was just saying NO as part of foreplay. After she said NO, our client inserted his finger into her vagina. That client was charged with third degree criminal sexual conduct. 3rd degree criminal sexual conduct carries a mandatory minimum sentencing of one year in prison, with a maximum sentence of 15 years.
The term “duress” is defined as coercion through the use of force or the threat of violence. Duress is used as a criminal defense when an individual has committed a crime in order to escape physical or emotional harm or injury.
If it can be proven successfully that the defendant committed a crime under duress, it will have the effect of absolving the defendant of any liability.
The defense of duress is rare and it is very complicated to establish. In order for a defense of duress to be adequate and effective, you must have an experienced criminal defense attorney who knows how to apply the defense appropriately to criminal sexual conduct cases.
JURY INSTRUCTION – DURESS
Michigan has a special criminal jury instruction for duress as a defense to criminal sexual conduct charges. This instruction is read at every jury trial involving criminal sexual conduct accusations, regardless of what degree.
CJI 7.6: The accused person says that they are not guilty because someone else’s threatening behavior made them act as they did. This is called the defense of duress.
The accused is not guilty if they committed the crime under duress. Under the law, there was duress if any of the following were true:
- The threatening behavior would have made a reasonable person fear death or serious bodily harm
- The accused actually was afraid of death or serious bodily harm
- The accused had this fear at the time they acted
- The accused committed the act to avoid the threatened harm
In deciding whether duress made the accused act as they did, think carefully about all the circumstances as shown by the evidence.
- Think about the nature of any force or threats
- Think about the background and character of the person who made the threats or used force
- Think about the accused’s situation when they committed the alleged act
- Think if they could have avoided the harm they feared in some other way than by committing the act
- Think about how reasonable these other means would have seemed to a person in the accused’s situation at the time of the alleged act
If the jury believes the evidence raises a reasonable doubt that the accused was acting under duress, then they must find the accused sex offender not guilty.
INSANITY OR MENTAL INCAPACITY DEFENSE
If the accused is charged with a sexual assault charge and the accused has a mental disease or defect at the time of the act, it may relieve him/her from being criminally liable for the sexual assault crime of criminal sexual conduct.
If a mentally challenged person is not able to understand the sexual activity as “consented” to, this may relieve that person from being criminally liable for a sexual assault charge.
In order to use “insanity” as a defense, notice must be given to the state that the defense is intended to be used.
There are several steps that must be done prior to deciding to use the defense of insanity. For example, you will have to be evaluated by a mental health professional/mental health provider. A medical expert will need to be hired to testify on your behalf. Your medical treatment records may be required, and a witness to testify on your behalf may be useful too.
The state will ultimately have an opposing expert denying any of the rationale testified to by your expert. That is why it is so important that you have a criminal defense lawyer who knows how to handle an insanity defense and knows their way around the courtroom.
There are several hurdles the accused must go through in order to effectuate a solid insanity defense, and Blank Law, PC is prepared to successfully go through all of those hurdles with you.
Michigan allows for an “alibi” defense. An alibi defense means that you were not present at the time and place that the victim claims he/she was a victim of sexual assault, because you were somewhere else.
An “alibi” defense is very, very powerful. A solid alibi defense can mean the difference between going to prison for life or enjoying your freedom. An alibi defense will tremendously assist in negotiating with the police and/or state during the investigative stage, prior to being charged. A solid alibi defense during a trial will be the best defense for a NOT GUILTY verdict.
THE LAWS FOR AN ALIBI DEFENSE ARE VERY SPECIFIC
MCL 768.20 provides, in pertinent part:
- If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi at the time of the alleged sex offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment, but not less than 10 days before the trial of the case or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense. The notice shall contain, as particularly as is known to the defendant or the defendant’s criminal defense attorney, the names of witnesses to be called on behalf of the defendant to establish that defense. The defendant’s notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged sex offense.
- Within 10 days after the receipt of the defendant’s notice, but not later than five days before the trial of the case or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.
An accused does not have to testify in his/her trial in order to present an alibi defense. The accused can have witnesses testify and present evidence at trial to support an alibi defense.
Blank Law, PC will review every detail of that alibi defense with you. It is imperative that the times and dates the victim claims he/she was a victim of sexual assault match the accused’s alibi. Photographs, witnesses, pay stubs, emails, texts, flight information, video footage, etc. are all examples of information that will be useful in confirming an alibi.
STATUTE OF LIMITATIONS DEFENSE
In Michigan, the statute of limitations provides a maximum period of time, after a violation of a crime, in which the prosecution has to charge you with a crime.
For instance, if the criminal prosecution attempts to charge you with a sexual assault crime after the applicable time period has passed, your sexual assault case can be dismissed.
The Michigan Statute of Limitations is always evolving. While some crimes have no statute of limitations, others have concrete statute of limitations. In certain cases, the statute of limitations may be tolled or suspended if you leave the state of Michigan, which grants the state additional time to commence a legal action.
FREQUENTLY ASKED QUESTIONS REGARDING STATUTE OF LIMITATIONS
Are there time limits for when the state can charge me with a criminal sexual conduct charge?
- First Degree Criminal Sexual Conduct: NO STATUTE OF LIMITATIONS
- Second Degree Criminal Sexual Conduct, Third Degree Criminal Sexual Conduct and Fourth Degree Criminal Sexual Conduct, or Criminal Sexual Assault: Within 10 years after the sex offense is committed or by the victim’s 21st birthday, whichever is later. If DNA evidence is used, within 10 years after the individual is identified or by the victim’s 21st birthday, whichever is later.
LIST OF FELONY CRIMES WITH THEIR STATUTE OF LIMITATIONS
- Murder: None
- Kidnapping, Extortion, Assault with Intent or Conspiracy to Murder: 10 years
- All Other Crimes: 6 years
- If the Alleged Victim was Under the Age of 18 for any Degree of Criminal Sexual Conduct, Assault with Intent to Commit Criminal Sexual Conduct, or Any Sexually Abusive Activity or Material to a Minor: 10 years or when the victim turns 21 years old, whichever is later
- If DNA Evidence is Obtained: None until the sex offender is identified, then 10 years after identification or when the accuser turns 21, whichever is later
The statute of limitations defense is a very detailed defense. In order to effectively argue a statute of limitations defense, precision and experience must play a role.
Calculating the statute of limitations for criminal sexual conduct cases is unique. There are several nuances that may apply in criminal sexual conduct cases.
Blank Law, PC has years of experience dealing with the statute of limitations arguments in Michigan. Nicole Blank Becker has successfully argued and won many statute of limitations arguments. Nicole’s years of experience with sex crime cases and statute of limitations issues are exactly what you need when being investigated and/or charged with a sexual assault crime.
INTOXICATION IS NO LONGER A DEFENSE
Intoxication is no longer an allowed defense to a criminal sexual conduct charge. First degree criminal sexual conduct, second degree criminal sexual conduct, third degree criminal sexual conduct and fourth degree criminal sexual conduct are all general-intent crimes for which the defense of voluntary intoxication is not available.
IMPORTANT TO REMEMBER
Oftentimes poor decisions are made when drugs and alcohol are involved. It is your responsibility, sober or not, to make sure that the person you decide to be intimate with is on the same page as you once you begin to engage in sex acts.
A person (accuser) who is under the influence of drugs and/or alcohol cannot give consent. Alcohol consumption or use of other drugs can render a person incapable of giving consent. If the accuser was using alcohol or drugs and was allegedly raped, the accuser will not get in trouble under the law. The person (accuser) who is a victim of criminal sexual assault while under the influence is considered to be a “vulnerable person” and, therefore, the law comes down on the person who knew or should have known that the accuser was under the influence and NOT able to consent to sexual relations.
BLANK LAW, PC EXAMPLES OF INTOXICATION
Blank Law, PC has represented several clients who have found themselves in this predicament.
For example, our client was in college and met a girl at a party. They had both been drinking at the party, excessively. They left the party together and continued to drink at his dorm. While our client changed his clothes, the accuser fell asleep. Our client got in bed with the accuser. Our client remembered her waking up, moaning and moving his hand onto her private parts (butt and vagina). Next, they had sexual intercourse (penetration).
The next day, one of the accuser’s friends asked her about what she did the night before and the accuser claimed she was raped (criminal sexual assault) by our client, but not to tell anyone. The accuser’s friend told her mom, who called the police. As a result, our client was charged with 3rd degree criminal sexual conduct.
Intoxication, of both our client and the accuser, was NOT a defense to non-consensual sex.
Have You Been Charged with a Sex Crime in Michigan? You Need to Hire Nicole Blank Becker!
Are you searching for a criminal defense lawyer or defense team that is well-versed in sex crimes to help you fight your sex-related criminal charges? Look no further! Criminal defense attorney Nicole Blank Becker of Blank Law, PC understands that everybody deserves a right to good legal representation and is dedicated to ensuring her clients’ rights to a fair trial within the criminal justice system are upheld.
As a well-respected criminal defense attorney, Nicole prides herself on creating an excellent attorney-client relationship and keeps all confidential or sensitive information completely between her and her clients, no one else. Bringing her 20 plus years of experience into your sex crimes case will assure you the best possible outcome for your sexual assault case.
If you are facing sex crime allegations (i.e. indecent exposure, gross indecency, child pornography, etc.), under investigation for sex crimes, facing Michigan criminal sexual conduct charges, a Michigan criminal sexual conduct conviction, or feel you have been falsely accused, avoid needing to register on the mandatory sex offender registration and give us a call at (248) 515-6583 or contact us online today to book a free consultation and get our criminal defense attorney working on your criminal sexual conduct case today!